*1 Appellee, Utah, Plaintiff STATE PENMAN,
Roger Eugene Defendant Appellant. No. 960639-CA. Appeals of Utah. Court 25, 1998. June
OPINION
ORME, Judge: Roger Eugene appeals the denial of his motion to withdraw his no-contest manslaughter, to one count of de- second gree in felony violation of Utah Code Ann. (1995),1 § 76-5-205 guilty plea robbery, degree felony in second violation (1978).2 § of Utah Code Ann. 76-6-301 We affirm, concluding requirements that the 11(e) of Rule' Utah Rules Criminal and, therefore, Procedure were satisfied properly the trial court denied mo- Penman’s tion to withdraw his con- We further clude that the record before is inadequate us to determine whether Penman received inef- counsel; fective assistance of. two of pieces allegedly three exculpatory evi- properly dence are not before us and that the third, a report, ballistics not improperly was withheld; and that Penman waived his Agreement under the Interstate on Detain- (IAD), ers codified Utah Code Ann. (1995), § 77-29-5 when unconditionally entered
FACTS 31, 1987, early
On morning October following day, Spencer hours Nielsen killed his Midvale home a blast twenty-gauge shotgun, from a and oriental artifacts from were taken his home. Several later, speed a high weeks chase occurred between the towns of Rawlins and Green River, Wyoming, ending apprehension in the Martineau, Rasmussen, Korey Reed L. D. appellant Penman and Monte “Bo” John- Snow, Martineau, Christensen & Salt Lake Baer, person, ston. A third Wendell Devon City, Appellant. for Defendant and police eluded apprehended and was later Colorado, Craig, but he made bail Graham, Gen., Atty. Jan and Kenneth A. Wyoming not been seen Bronston, since. authori- Gen., Atty. Asst. Appeals Criminal Div., ties recovered City, artifacts the vehicle that Salt Lake Appel- Plaintiff and were identical to those taken from lee. Nielsen’s
home. The authorities also recovered twen- WILKINS, ORME, Before ty-gauge shotgun JACKSON shells from the vehicle JJ. pockets. Penman’s reader, 1. As a statutory throughout convenience to the and because recent codifications this provisions opinion, at the effect relevant times do unless otherwise noted. materially statutory provi- not differ from the effect, currently subsequently sions cite the most 2. Section 76-6-301 was amended. arrest, sup- pointed attorney filed a memorandum Wyoming Penman was After his probation-vio- face porting transferred to Nevada Penman’s motion withdraw his Meanwhile, exchange charges. lation pleas, arguing that the court failed immunity, provided Lake Salt comply Rule Utah Rules of County with information two authorities accepting Procedure Criminal *3 was Nielsen of which the homicides —one pleas. Specifically, guilty and no-contest informed the authorities homicide. Johnston plea argued colloquy that the and Penman he, Penman, Baer, and Rick Lewis went that inadequate and that he did affidavits were to where stole the Nielsen residence voluntarily. pleas con- the Penman not enter that artifacts. also stated oriental pleas upon that he entered the based tended leaving, he and Penman reentered before and Lewis the belief that both Johnston home, Penman shot with the where Nielsen testifying against him. He also would be twenty-gauge shotgun. testimony gave perjured that Lewis asserted theft, County authorities filed Salt Lake hearing. mo- the preliminary at robbery, second-degree mur- burglary, and his on pleas to withdraw was denied tion Penman, Baer, charges and against Lew- der August attorney His withdrew 1992. Nevada, Penman is. While incarcerated during ensuing thirty-day appeal period 180-day disposition detainers for a filed filing appeal. first a notice without Utah on the IAD and was returned to pro Penman’s next was to file a se move April subsequently Penman waived 1988. Corpus April Writ of on Petition for Habeas later his under the IAD. Lewis was petition, 1994. In his Penman made a agreed cooperate to with and Salt arrested arguments, including those raised number County exchange for re- Lake authorities pleas, in his motion to withdraw his but also substantially charges. duced His account counsel, vio- Johnston’s, alleged except regarding who ineffective assistance supported IAD, actually pulled trigger. prosecutorial miscon- lation of and 15, 1995, On June duct. Shortly preliminary hear- before Penman’s State, summary judgment granted Johnston, probation ing, who then concluding the claims Penman raised large. Wyoming, fled remains at Lewis petition procedurally barred due to his were key witness. therefore became State’s directly denial of appeal his failure to his 28, 1988, following preliminary On October a pleas, pleas motion withdraw testified, hearing at which Lewis knowing voluntary, he was and that plea manslaughter a no-contest entered prejudiced by his counsel’s withdrawal guilty plea robbery. Penman re- during following thirty-day period sentence, he lengthy prison which ceived denial of his motion withdraw continues to serve. court, in an appealed to this PROCEDURAL HISTORY decision,3 re-we unpublished memorandum the case to and remanded versed pro se Mo- Penman filed a In June denying Pen- reentry of the order court for Counsel, Motion to Appointment tion for thereby pleas, man’s to withdraw his motion Pleas, in Forma and Motion Withdraw belatedly pursue him the first enabling Appoint- Pauperis. Penman’s Motion for 9,1990. he had been thereto- which July granted on ment of Counsel was court reentered the The trial delays getting ap- fore denied. counsel After several pro August 1996. ap- nunc”4 on newly order “tunc pointed, in March 1992 Penman’s then,’ tunc, pro 'now which means established 4. "Nunc 3. the memorandum decision Because circumstance, probably a for this misnomer plays a role in "law of the case" which central resentencing give judg- the court is where analysis, the is set forth for our decision present retroactive but ment of conviction not opinion. purpose Appendix limited in the to this Perhaps being the action effect—‘then for now.’ - R4-508(l), (3), Admin. See Utah Code Jud. pro tunc here should termed authorized 605. Johnson, n. 1 State v. nunc.” (Utah 1981). ' appeals now that order.5' (2) plea made; That the (3) That he defendant knows ISSUES rights against compulsory self-incrimina- arguments Penman raises several in this tion, jury to a trial and to confront and First, argues appeal. that the trial court open cross-examine court the witnesses comply failed to Rule of the Utah against him, entering taking Rules of Criminal Procedure rights; he waives all of those and, therefore, pleas, and no-eontest (4) That the defendant understands the good cause’ exists the withdrawal nature and elements the offense to Second, Penman contends that he entering plea; upon which he is *4 denied effective assistance counsel in prosecution trial the would have the bur- entering guilty pleas. his and no-contest proving den each those elements be- Third, Penman claims that he would not have doubt; yond plea a reasonable and that the entered his pleas had he known of certain an admission of all those elements.... exculpatory impeachment which evidence ll(e)(2)-(4) (1988).6 Utah R.Crim. P. The Fourth, argues obtained 1994. judge establishing, trial bears the burden jurisdiction that the Utah State of lost over record, the compliance strict with Rule rights him because his waiver of under the 11(e). See v. Abeyta, 852 P.2d 995 knowingly, IAD was not made intelligently, (Utah 1993) curiam); Gibbons, (per State v. voluntarily. (Utah 1987). However, 740 P.2d 1313 compliance accomplished by “strict can be ALLEGED RULE 11 VIOLATION multiple so long requirement means no long the rule is omitted and so as the record Penman first contends that he did not requirement reflects that the has been ful- understand nature and elements man Maguire, filled.” State 830 P.2d 218 robbery slaughter and when he his entered (Utah 1991). pleas plea and that the affidavits and collo quy fail to demonstrate Rule 11 compliance. complied We conclude that the trial court 11(e) argues He with Rule therefore the trial court and therefore did not abuse in denying erred its discretion in motion withdraw his Penman’s motion to withdraw his may record compli- [The] [Rule reflect 11 plea guilty may “A or no contest be by multiple means, e.g., transcript ance] only upon good withdrawn cause shown and colloquy the oral between the court and with leave of the court.” Utah Code Ann. defendant, contents of a written affidavit 77-13-6(2)(a) (1995). § “We review a trial read, that the record reflects was under- a court’s denial of motion to withdraw a stood, acknowledged defendant and plea abuse-of-discretion stan- court, contents of other documents Blair, dard.” State v. 805 information, presentence such as the re- (Utah 1993). Consequently, “[t]he trial exhibits, etc., ports, similarly incorporated findings court’s conjunction of fact made record, into the and so on. with its decision will not set be aside unless open In Id. court and in accordance with clearly are Id. erroneous.” ll(e)’s requirements, Rule Penman executed The version Rule 11 effect when affidavits, charge, two one for each wherein plea provided, perti entered pleas he stated that his part, nent made, rights against that he knew he had accept [t]he court ... shall compulsory . ... a jury a self-incrimination and to [guilty trial, or no until prosecutor contest] the court that he understood the must findings: made prove every charged element of the crimes 5. We acknowledge the assistance of Penman's 6. Rule 11 been has since amended. counsel, represented pro who Penman in these ceedings pro bono. attorney’s ad- pro- if that he was satisfied with beyond a reasonable doubt trial, pleas and that waived vice. ceeded to affida- discussed in the constitutional foregoing, Despite Penman contends
vits. satisfy strictly trial court did crimes, regard to the elements With him in a engage Rule 11 because it failed to had re affidavits stated that Penman colloquy about each element of criminal man information, set copy which ceived course, robbery. slaughter and Of such robbery charge and further recited forth the necessarily required. is not While discussion' charged with “criminal that Penman was satisfied, strictly Rule 11 must homicide, degree, [for] murder in second “perform need not recita verbatim intentionally knowingly caus[ing] every each and statement made in the tion of Spencer death of Nielson.” information Trujillo- State v. defendant’s affidavit.” a probable also contained cause statement Martinez, Ct.App.1991), describing supporting charges, facts 1992). denied, rt. ce Pen including allegation that “defendant Trujillo-Martinez, In the defendant simi- range a 20 Nielson at close man shot larly argued Rule had not been shotgun.” g[au]ge Jolivet sawed-off Cf. the trial court failed satisfied because (Utah 1989) (look Cook, *5 inquire un- specifically into the defendant’s that support information to conclusion ing to derstanding of nature and the elements made), plea knowingly voluntarily and was charged id. that the crime. See heldWe denied, 1033, 110 751, 107 493 cert. U.S. S.Ct. court Rule 11 because the trial satisfied (1990). 767 L.Ed.2d “strictly complied the defendant’s affidavit criminal affidavit also stated The homicide 11, colloquy established] Rule and the with manslaughter “[t]hat the elements knowingly volun- that and [the defendant] party to as a the offense defend[a]nt the tarily signed affidavit.” Id. at 600. the recklessly caused the death of another.” Here, Trujillo-Martinez, affidavit as the robbery charge pertaining to the affidavit 11 complied Rule fully with and offense. similarly stated the elements that signed Penman the court established that “I this affidavits recited: have read Both open knowingly and affidavits Affidavit, by my or I had it read to me require- hold the We therefore that court. attorney I and understand its con- and know Rule and that 11 were satisfied ments signed the be- tents.” Penman affidavits trial court not abuse its discretion the did he and statements that could read neath by denying Penman’s motion to withdraw language he English the and that understand completed year his GED and one had earned attorneys college. signed Both of his ASSISTANCE INEFFECTIVE affidavits, judge prosecu- as did trial and OF COUNSEL Thus, Penman the affidavits executed tor. 11(e). complied Rule See Gib- also that was denied Penman contends he , bons, require- (listing 1313-14 740 at right to effective assis- his constitutional affidavit). sufficient ments of alleges that Specifically, he of counsel. tance stipu- affidavits, attorney “fraudulently” original in-court In addition “Bo” had been engaged meaningful lated that Monte Johnston trial court failed inform the subpoena, with a plea colloquy. colloquy, the trial served In the write, read, had been sub- that not could trial court judge verified that Penman appropriate ac- and to take poenaed, that not failed English; understand he was and alcohol; subpoena. Addi- light the lack of drugs or tion the influence of attorney ill; alleges that his tionally, mentally that he understood he was Lewis manslaugh- known that Rick entering knew or should have by pleas to criminal immu- testimony regarding an perjured robbery giving up gave be cer- he would ter attorney failed nity agreement rights; constitutional he understood tain felony; appropriate action. degree to take penalty for a second 1162 However, unable to address the merits of pages transcript
We are two isolated inadequate, ineffective assistance claims. In importantly Penman’s most because it does case, previous our permit place testimony decision in this we ordered any us to “[W]e follows: reverse and remand this context whatsoever. Penman contends that for reentry ease to the trial court should responsible he not be held for the complete order motion transcript, Penman’s to withdraw of a claiming absence guilty pleas, pursue parties so that he will be agreed able to that the entire record in first as of from that order.” case part appellate would made be Thus, Appendix at A-2. instant understanding record that it necessarily limited to the trial denial provide court’s court clerk would those entirety. Penman’s motion to withdraw his records their original withdraw, In his motion to contentions, Despite he is upon perceived touched what some he be ultimately responsible ensuring that shortcomings, of trial counsel’s but failed portions all necessary receive of the record specifically raise an ineffective assistance arguments appeal. to his on a defen ‘When claim. This is argument therefore new predicates court], dant appellate error to [an appeal. raised for the first time duty responsibility he has the of support such ing allegation an adequate record.”
“[PJroof of ineffective assistance of
Wulffenstein,
657 P.2d
speculative
counsel cannot be a
matter but
(Utah 1982),
denied,
cert.
460 U.S.
reality.”
must be a demonstrable
Fernandez
(1983).
S.Ct.
L.Ed.2d 799
Accord
Cook,
(Utah 1993).
870 P.2d
Nelson,
Turner v.
When a defendant
raises
ineffective assis
1994);
Jordan,
City
Call v.
West
tance claim
time on appeal,
first
(“[T]he
Ct.App.)
appellant
only
claim will
reviewed
“if the ...
record
*6
the
providing
burden of
reviewing
the
adequate
permit
is
to
decision of
issue.”
the
adequate
court with an
appeal
record on
to
1027,
Humphries,
State v.
P.2d
818
1029
denied,
prove
allegations.”),
his
(Utah 1991).
cert.
800 P.2d
is
in
adequate
record
(Utah 1990).
record,
1105
“Absent that
de
this case.
assignment
fendant’s
of error stands as a
First, regarding
trial
to
counsel’s acts
allegation
unilateral
which
review[ing]
the
surrounding
omissions
sub
power
court has
to
no
appel
[An
determine.
poena,
inadequate
there
evidence
simply
question
late court]
cannot rule on a
pertaining
record
to counsel’s actions and/or
depends
upon
which
its
alleged
existence
knowledge and
relating
insufficient evidence
unsupported by
facts
the record.” Wulffen
to whether Johnston
fact served.
stein, 657
293. Consequently,
P.2d at
in the
Therefore,
ability
we have no
to address this
of
[inadequate
face
“an
on appeal,
record
claim.
must
the regularity
pro
[we]
assume
of the
Miller,
ceedings below.” State v.
718 P.2d
Second, regarding
allegedly
Lewis’s
(Utah 1986)
curiam).
(per
405
See State
perjured testimony, there is also insufficient
(Utah
Blubaugh,
v.
Ct.App.
699
evidence in the record for us to determine
1995) (assuming regularity
proceedings
of
be
this issue. Penman
that
contends
his counsel
transcript),
appellant
low because
failed to include
any
failed to take
action after
twice
Lewis
denied,
(Utah
t.
EXCULPATORY tion, it in and the trial court addressed its Fact, filing argues Findings next that after his Conclusions of Law and pleas, he un- report initial motion withdraw Order. is also not While ballistics exculpatory should properly scope ap covered evidence this direct within him. provided He contends peal been the denial of motion to evidence, that, had he been aware of this pleas, given withdraw his the likelihood recur, would not have entered will we nonetheless address issue exculpatory items alleged See, three points judicial economy. it in the interest report; an F.B.I. a Salt evidence: ballistics e.g., Springs, v. 916 Vitale Belmont P.2d report, County purportedly Lake Sheriffs (addressing 363 Ct.App.1996) issue establishing that Rick Lewis entered into an judicial economy, though even interest prosecutors; immunity agreement with grounds). case decided other Cf. allegedly showing subpoena (Utah 1991) (“Is documents that a James, P.2d witness, key was never served on the State’s fully sues are briefed on and are should, Monte “Bo” Johnston. likely presented be on remand court.”); by appellate] [an State v. addressed indicated, previously this appeal As is from (Utah 1988) (address Bell, 100, 108 motion to the denial of Penman’s withdraw judicial economy, ing issue interest pieces allegedly All three excul recur, likely provide since issue scope fall patory evidence outside Pen guidance); Corp. court- Atlas Clovis pleas and are man’s motion to withdraw Bank, (Utah 1987) Nat’l properly in an therefore not before us (same). regardless of bal We hold that Chap denial of that motion. from the Cf. inculpatory report’s exculpatory or na listics Chapman, man v. ture, improperly it was withheld curiam) 1986) (per (stating appellate *7 at prosecution because Penman his and/or outside the court cannot consider matters known it. torney knew or of should record); Cluff, In re Estate 587 of 1978) (same). (Utah n. 1 129 corpus In decision on Penman’s habeas its aspect this Concerning exculpatory petition, the trial court addressed Penman’s ev claim, specifically finding it was “not to the of relating idence claims Johnston sub his persuaded unaware of the alleged prose that was poena [Penman] and Lewis’s deal with amply sup- cutors, report.” finding This is Penman raised ballistics we note that these Preliminary Response conjunction by the State’s arguments pe ported with his initial Discovery, to corpus. Request to which refers It was the tition for writ habeas investigating de- petition correspondence between appeal from the denial this that court, concerning evidence to tective and the F.B.I. in our remand resulted The that this evi- denying the case. asserts instructing it to reenter order State to, his pleas, counsel his dence shows Penman’s motion withdraw and/or knew had to know of F.B.I. thereby enabling to or reason undertake this this court, report. Penman fails to refute denying ballistics appeal. The trial direct init his re- or otherwise address petition, failed to address the contention the habeas finding, relating ply Given the court’s exculpatory claims to brief. evidence it, Thus, supporting and Pen- apparently evidence while these Johnston and Lewis. argument con- explanation or us on direct man’s lack properly claims are not before it, his or cerning we must conclude appeal we therefore decline to address known that the them, raising knew or should have counsel Penman is not foreclosed 1164 and a
ballistics test had been conducted
re
held
uncon
above
Penman’s
We
port prepared.
improper
not
pleas
“[EJvidence is
were
ditional
consistent with Rule 11
ly
knowledge
withheld if
and, therefore,
the defense has
that the trial
did not
simply
that evidence and defense counsel
abuse its discretion in
mo
Penman’s
Jarrell,
request
fails
it.” State v.
voluntary
pleas.
tion to withdraw his
“A
218, 225 (Utah 1980).
no con
[and unconditional]
or
right
ap
test
a waiver of
constitutes
”
peal
nonjurisdictional
all
issues....
State
INTERSTATE AGREEMENT
Smith,
Ct.App.
372
ON DETAINERS
1992).
Brocksmith,
Accord State
888
appeal
argument
Penman’s final
Contrary
Ct.App.1994).
IAD,
jurisdic
lost
the State
position,
‘rights
Penman’s
“the
created
tion over him because he
not waive his
did
fundamental,
statutory,
are
IAD[]
not
”
rights knowingly, intelligently,
IAD
and vol
constitutional,
jurisdictional
in nature.’
untarily.
specifically,
alleges
More
Brocksmith,
(alteration in
deal Lewis and allowed testimony regarding the lack of a Lewis’s First, conclude we that Rule 11 was satis- uneorrected, misrepre to stand “deal” and, therefore, prop- fied that the trial court subpoenaed sented Johnston had been erly Penman’s motion denied to withdraw his appear in court. Second, we hold that the record is inadequate for us to decide on direct correctly asserts Penman’s claims of ineffective assistance argument properly IAD Third, regarding pieces counsel. the three scope previous appeal. within of this As allegedly exculpatory evidence which Pen- explained, ly this is limited to the withheld, improperly man contends denial of withdraw defendant’s motion to relating conclude that the evidence to the argument Penman’s IAD was never *8 subpoena alleged and to Lewis’s conjunction raised with the motion to with deal prosecutors properly is not before draw, and it is properly therefore not before finding us. We hold that the trial court’s However, given us.7 the likelihood that this report improperly that the ballistics was not will pro issue resurface in a future habeas clearly withheld not erroneous because ceeding, we it nonetheless address now in the showing evidence in record Penman judicial economy. interest of See State v. James, attorney 1991); knew or should have State and/or Bell, (Utah 1988); Fourth, known of it. we conclude that Pen- v. P.2d Atlas Bank, by Corp. v. Clovis Nat’l P.2d man waived his the IAD (Utah 1987). unconditionally and pleading no argument if provide adequate 7. Even Penman's IAD were within to defendant’s failure to record, an scope provide appeal, of this his failure obligated we would be assume transcript hearing preliminary sufficient Miller, hearing. regularity of that See prevent addressing alleged us from would 405; Wulffenstein, 293; Blubaugh, at 657 P.2d at any bearing proceeding errors in and 699. 904 P.2d at rights. had on his decision Due to waive his IAD rob- manslaughter and contest
beiT-8 MEMORANDUM DECISION GREENWOOD,
Affirmed. Judge: Roger appeals court’s P.J., JACKSON, WILKINS, and summary petition Associate judgment dismissal of his corpus. a writ claims J., for of habeas concur. determining that: that the trial court erred (1) directly appeal Penman’s failure APPENDIX guilty pleas denial his motion withdraw receiving him col- proeedurally barred from IN CASE NO. 960639-CA TO OPINION (2) review; lateral withdrawal thirty-day court-appointed during the counsel IN THE UTAH COURT OF APPEALS deny appeal period prejudice Pen- did Penman, Roger appeal. Eugene to a first We reverse man reentry of the order and remand for Appellant, Petitioner and guilty plea. motion withdraw appeal from reviewing In a dismissal v. petition corpus, “no for a writ habeas court’s con- deference is accorded lower Carver, al., Scott et clusions of that underlie the dismissal law petition. correct- review those for We Respondent Appellee. Cook, 547, 549 ness.” Fernandez (Utah 1989). Case No. 950484-CA improper with- Penman claims that 1996) (April FILED during court-appointed counsel drawal of his appeal period is an unusual circumstance District, County Lake Third Salt justifies the writ which him to entitles Bohling B. Honorable William directly the denial of his his failure to guilty pleas.1 motion to withdraw Korey D. Attorneys: Reed L. Martineau Rasmussen, City, Appel- Lake for Salt Supremé Court’s We believe Utah Mieklos, Gordon, Angela opinion 350] lant. Jan Graham [913 Gordon, (Utah 1996) controlling. In Appellee City, Lake for Salt attorney had caused
defendant claimed his right to an him to his constitutional be denied DECISION MEMORANDUM court’s appeal. from the trial On Greenwood, petition a writ Judges Orme, and Wil- denial of the defendant’s Before relief, supreme postconviction kins. us, way petition would such a properly comment on whether were not before 8. Those matters that address, generally & nn. unable to id. at 1036-37 and which may were therefore be well taken. See corpus pro- that, a habeas best be dealt with in claims aside those 6-8. We do note from ceeding can he taken. As the merits, where evidence the usual which treated on we have Supreme explained: Court has Utah petitions should successive habeas concern about called have Numerous cases arisen petition. pursuing bar such justice question the fundamental a convic- corpus peti- previous habeas This is because his be, not, where the or could not tion issue effectively prior decision derailed our tion was appeal. examples Prime *9 dealt with direct orderly appeal” putting "direct a him on more cases in which issues arise outside the involve rather than entertain track. didWe this. record, e.g., subsequent discovery of the petition, appeal of habeas the denial from evidence, exculpatory inef- suppression of essentially regarded premature. as which we counsel, especially in the assistance of fective Appendix. See case, investigation preparation a and evidence, discovery exculpatory and of new on which several other issues 1. Penman raises knowing by court committed on the fraud against of our him. Because the trial court ruled use of false evidence. disposition reach issues. we do not those Cook, (Utah n. Hurst v. However, 1989) (citations omitted). we in no remanding an order issued court I CONCUR: resentencing for in for a order to allow first W appeal right. as of Id. at [352]. su- Orme, Gregory K. plenary preme engage court did not a Presiding Judge review of defendant’s claims ineffective WILKINS, counsel or whether of the “consti- Judge the denial (concurring): right appeal” wrongful. tutional to an I in the reasoning concur and result ex- Instead, merely it remanded in order to facil- However, pressed opinion. in the main while opportunity appeal itate for a as of first agree plain meaning I that the of State repeated right. supreme Id. The also Gordon, 1996) appears [913 350] case, its admonition in an earlier as follows: case, require remand in this I fear opinion may both and our Gordon here appellate] [an court on habeas Once review misunderstood. determines that a has been defendant de- Id. at Therefore, once a court determines that a nied the counsel. claims, such as ately, Hallett, direct [357] without appeal constitutional (emphasis should be adjudication ineffective added) right provided (quoting assistance any appeal, immedi- 1993)). other a farther wise ing appeal tioner Gordon as case sition that once the court has reviewed the As I read untimely appeal. sufficiently allow mandates review is been saying Gordon, denied the opportunity to determine that the necessary. nunc it stands for the any pro right failure to file an to file an other- tunc resentenc- I do appeal, not read propo- peti- no has been defendant denied the constitutional Unfortunately, only very reading careful right appeal, the case be remanded should and our Gordon decision here will reveal resentencing, trial court “to the for so that the consistent use of the word “denied” may ... [the defendant] raise the issues the preliminary relation to determination of presented appeal right.” a first as of Id. Gordon, Penman, it to be how came at [353]. up timely without a appeal ended in the first place. I understand the used in word to be largely Penman’s claim is to the identical Gordon, Penman, the sense defendant’s Gordon. claimed that Both prevented way meaningful been some from counsel, legal of their because proceeding appeals. their we con- Had prevented appeal pursuing from first simply right cluded that Penman waived his right. Accordingly, following opinions inaction, knowing his own Hallett, Gordon reverse remand have been opportunity would not denied the reentry case to the this trial court appeal, and remand inappropri- would be denying order Penman’s motion to withdraw ate. guilty pleas, pursue so he will be able to (Si appeal as a first that order. from Wilkins, Judge Michael J. We note that this slightly differs Gor- don, in that Penman seeks to from the denying
order his motion to withdraw pleas, adjudication rather than from an
guilt sentencing, as was case appropriate It is therefore to re-
Gordon. reentry mand the order in this motion case. *10 /S/ Greenwood, Judge
Pamela T.